Compensation for the oil spill in Mauritius could be limited by the technicality of maritime law

Experts warn that payments for an oil spill that devastated the fishing and tourism industries in Mauritius may not match the scale of the damage

As Mauritius counts the cost of a devastating oil spill, experts warn compensation payments could be limited by a technicality.

On July 25, the Japanese bulk carrier MV Wakashio ran aground on a coral reef off Mauritius, spilling up to 1,000 tonnes of heavy oil into a pristine lagoon.

Its location on the edge of protected fragile marine ecosystems and a wetland of international importance made the spill one of the worst environmental disasters ever to occur in the Western Indian Ocean.

Yet, as the oil came from a vessel designed to carry dry cargo, Mauritius could be eligible for less than 2% of the maximum compensation available in the event of a tanker sinking. The claim for compensation will be decided by the Mauritian courts once the full impact of the spill has been assessed.

On Wednesday, dolphins washed up on the white sand beaches of Mauritius and died. The pollution has dashed hopes of reviving the fishing and tourism industries from the economic fallout from the coronavirus pandemic.

” It’s discouraging. It really affected everything,” Yuvan Beejadhur, a former blue economy expert at the World Bank and coordinator of citizen movements in Mauritius, told Climate Home News.

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Earlier this month, shipping company Nagashiki, which operated the vessel, confirmed that Mauritius was seeking compensation for the spill.

In one declarationNagashiki’s director, Yoshiaki Nagare, apologized for the incident and said the company was “aware of the responsibility of the parties involved and intends to respond in good faith to damages in accordance with applicable law” .

Ambassador Jagdish Koonjul, Mauritius’ permanent representative to the UN, told the CHN that the country had received “an enormous amount of goodwill” from Japanese shipowners and the international community, with some 60 experts helping the island’s authorities assess the long-term impact. of the spill.

However, getting “fair” compensation could be difficult, according to Jason Chuah, professor of commercial and maritime law at City University Law School, London, UK.

If the MV Wakashio had been an oil tanker, Mauritius would have been eligible for compensation of up to $1 billion under maritime law, he wrote in a blog post. Instead, because it is a bulk carrier, compensation could be capped much lower and Mauritius could be entitled to a maximum of $18 million.

The difference is based on the assumption that bulk carriers, which carry solid cargo such as grain or coal, have a lower pollution potential than tankers.

“But try telling that to people whose livelihoods were devastated by 1,000 tonnes of oil spill,” said Chuah, from City University.

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Ships have gotten bigger since these rules were written and carry more fuel, so even bulk carriers can cause major spills, explained Regina Asariotis, maritime lawyer at UNCTAD, the United Nations body responsible for trade and development issues.

Ambassador Koonjul said the international community should reconsider the legal framework and align regulations for tankers and bunkers “to ensure that more than adequate compensation is given for any oil spills”. “Because an oil spill is an oil spill, whether it’s caused by a bunker or an oil tanker,” he said. “We never imagined how huge this kind of spillage could be.”

He added: “Tourism and nature conservation are all we have as resources and if they are damaged it is obviously going to be extremely bad for us. It is high time for small islands to consider how to better prepare for this kind of damage.

The United Nations has expressed its intention to create a recovery fund to support the Mauritian government and provide financial assistance to fishermen who have lost their income.

Although the full cost of the cleanup and the scale of the environmental, social and economic impact of the spill are taking a long time to establish, campaigners fear the company responsible may get away with it.

“The spill has impacted our livelihoods and our reputation as a clean island is totally tarnished. These are costs that need to be assessed,” Beejadhur said.

“International maritime law favors ships, it does not favor communities that depend on corals and lagoons to survive. It can be difficult to get compensation on the scale we need.

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Under international law, compensation for oil spills is capped regardless of the extent of damage. Unless a court can show that it resulted from a willful act or omission of the shipowner, “committed with intent to cause such loss” – a high degree of culpability difficult to prove.

The fallback solution is the 2001 Bunker Convention, which imposes strict liability on shipowners in the event of a spill. However, the amount of compensation that can be paid is capped by a separate legal framework and depends on the size of the vessel.

If Mauritius had ratified a protocol updating the compensation cap, the island could have received up to $65 million, according to some estimates – still well below the sums available for the sinking of an oil tanker. Ambassador Koonjul told CHN Mauritius that he is taking the necessary steps to ratify the protocol.

“By limiting liability, we allow companies to externalize the damage done to the people they have harmed rather than taking full responsibility…we need to rethink whether this is in line with international environmental law” , Alex Lenferna, climate justice advocate for 350Africa, whose family is from Mauritius, told CHN.

If pollution doesn’t come at a high cost, then the fossil fuel industry has every reason to “exist much longer”, he added.